Citation Nr: 1108811
Decision Date: 03/04/11 Archive Date: 03/17/11
DOCKET NO. 07-36 487 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey
THE ISSUE
Entitlement to an increased rating for a lumbosacral strain, currently rated 40 percent disabling.
REPRESENTATION
Appellant represented by: New Jersey Department of Military and Veterans' Affairs
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
B. Elwood, Associate Counsel
INTRODUCTION
The Veteran served on active duty from January 1973 to February 1976 and from January 1977 to March 1982.
This matter initially came before the Board of Veterans' Appeals (Board) from a July 2007 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Newark, New Jersey. In that decision, the RO denied entitlement to an increased rating in excess of 40 percent for a lumbosacral strain.
In April 2008, the Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO and a transcript of that hearing has been associated with his claims folder.
In December 2009, the Board remanded this matter for further development.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required.
REMAND
The Veteran's Claims Assistance Act of 2000 (VCAA) requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(c), (d) (2010). The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159(c)(4).
In December 2010, the Veteran submitted a signed "Authorization and Consent to Release Information" form (VA Form 21-4142) indicating that he received treatment for his lower back from Monmouth Medical Center Clinic in Long Branch, New Jersey.
VA has adopted a regulation requiring that when it becomes aware of private treatment records it will specifically notify the Veteran of the records and provide a release to obtain the records. If the Veteran does not provide the release, VA has undertaken to request that the Veteran obtain the records. 38 C.F.R. § 3.159(e)(2) (2010). Any treatment records from Monmouth Medical Center Clinic for lower back symptoms are directly relevant to the claim for an increased rating for a lumbosacral strain. A remand is necessary to attempt to obtain these records.
Accordingly, the case is REMANDED for the following action:
1. The Agency of Original Jurisdiction (AOJ) should take all necessary steps to obtain and associate with the claims file all treatment records for a lower back disability from Monmouth Medical Center Clinic in Long Branch, New Jersey.
All efforts to obtain these treatment records should be documented in the claims file. If these records are unavailable, this should also be noted in the claims file.
If the Veteran fails to furnish any necessary releases for private treatment records, he should be advised to obtain the records and submit them to VA.
2. If any benefit on appeal remains denied, the AOJ should issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order.
The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).
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Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).